Positive Action (UK)
Voluntary, lawful steps an employer can take under Sections 158 and 159 of the Equality Act 2010 to address underrepresentation or disadvantage linked to a protected characteristic, without selecting candidates based on that characteristic.
- What Is Positive Action?
- Section 158: General Positive Action Measures
- Section 159: The Recruitment and Promotion Tiebreaker
- Positive Action in Practice: Examples by HR Function
- The Disability Confident Scheme: Positive Action in Action
- Implementing Positive Action: A Step-by-Step Approach
- Positive Action Usage Statistics (UK) [2026]
- Frequently Asked Questions About Positive Action
What Is Positive Action?
Key Takeaways
- ✓Positive action is a set of lawful measures employers can take to address underrepresentation or disadvantage linked to a protected characteristic.
- ✓It's defined in Sections 158 (general measures) and 159 (recruitment and promotion tiebreaker) of the Equality Act 2010.
- ✓Positive action is voluntary. No UK employer is legally required to take positive action, but the Act permits it when certain conditions are met.
- ✓The critical difference from positive discrimination: positive action doesn't mean selecting someone because of their protected characteristic. It means removing barriers and broadening opportunity.
- ✓92% of employment lawyers say the Section 159 tiebreaker provision is underused because employers don't feel confident applying it correctly (Law Society, 2024).
Positive action is what UK law allows employers to do when they want to address underrepresentation or disadvantage in their workforce. It sits in a specific legal space: more than doing nothing, but less than positive discrimination (which is unlawful). Think of it as the toolkit of lawful measures available to employers who've looked at their workforce data and want to change what they see. Section 158 covers general positive action: outreach, encouragement, training, and development programs aimed at underrepresented groups. Section 159 covers a specific recruitment and promotion scenario: when two candidates are equally qualified, the employer may consider underrepresentation as a factor in choosing between them. Both sections require the employer to reasonably think that people sharing a particular protected characteristic are underrepresented, disadvantaged, or have particular needs. You can't take positive action based on a hunch. You need data.
Section 158: General Positive Action Measures
Section 158 is the broader provision that permits a range of measures to address disadvantage, underrepresentation, or particular needs linked to a protected characteristic.
The three conditions
Before taking positive action under Section 158, the employer must reasonably think that one of three conditions applies: (1) persons sharing a protected characteristic suffer a disadvantage connected to that characteristic, (2) persons sharing a protected characteristic have needs that are different from those who don't share it, or (3) participation by persons sharing a protected characteristic in a particular activity is disproportionately low. The evidence doesn't need to be a formal statistical study. Reasonable belief based on workforce data, national statistics, or industry benchmarks is sufficient.
What measures are permitted
Under Section 158, employers can: advertise roles in media or networks that reach underrepresented groups, offer mentoring or coaching programs to employees from underrepresented backgrounds, provide additional training to address specific skill gaps linked to historical disadvantage, run outreach events encouraging underrepresented groups to apply for roles, offer work experience or internship programs aimed at underrepresented communities, and provide guidance or support to help people with specific needs participate in recruitment processes. The action must be proportionate. Running a 12-month leadership program exclusively for women might be proportionate if you have data showing severe female underrepresentation in senior roles. Running the same program when your leadership is already 50/50 probably isn't.
The proportionality test
Every positive action measure must be a proportionate means of achieving the aim (addressing underrepresentation or disadvantage). Disproportionate measures risk being challenged as positive discrimination. Proportionality considers: the degree of underrepresentation, the nature and duration of the measure, whether less restrictive alternatives exist, and the impact on people who don't share the protected characteristic. A good rule of thumb: if the measure removes barriers without giving preferential treatment in selection decisions, it's likely proportionate.
Section 159: The Recruitment and Promotion Tiebreaker
Section 159 is the more controversial provision. It allows protected characteristics to be a factor in specific recruitment and promotion decisions, under strict conditions.
How the tiebreaker works
When an employer is deciding between two candidates for recruitment or promotion, and the candidates are "as qualified as each other," the employer may take into account whether one candidate belongs to an underrepresented group with a protected characteristic. This doesn't mean the characteristic determines the outcome. It means that, at the point of genuine equal qualification, underrepresentation can tip the balance. The employer must still consider each case individually. A blanket policy of "always choose the underrepresented candidate in a tie" is unlawful because it removes individual assessment.
Why it's rarely used
92% of employment lawyers say Section 159 is underused (Law Society, 2024). The reasons are practical. First, genuinely equally qualified candidates are rare. When you use structured scoring, one candidate almost always comes out ahead. Second, if the employer gets the "equally qualified" assessment wrong, the losing candidate has a strong discrimination claim. Third, there's very little case law providing guidance on how tribunals would interpret the provision, so employers face legal uncertainty. Most employment lawyers advise using Section 159 only when the evidence of equal qualification is very strong and well-documented.
Documentation requirements
If you use the Section 159 tiebreaker, document everything. Record the scoring for both candidates showing they're genuinely equally qualified. Document the evidence of underrepresentation (workforce data, benchmarks). Note that the decision was made on a case-by-case basis, not as a blanket policy. Keep these records for at least 12 months, as the losing candidate has 3 months (minus one day) to file a tribunal claim.
Positive Action in Practice: Examples by HR Function
These examples show how UK employers apply positive action lawfully across different areas of HR.
| HR Function | Positive Action Example | Legal Basis | Key Requirement |
|---|---|---|---|
| Recruitment advertising | Advertising graduate roles in publications aimed at Black professionals | Section 158 (low participation) | Role must remain open to all applicants |
| Application process | Guaranteeing interviews for disabled applicants who meet minimum criteria (Disability Confident) | Section 158 (disadvantage) | Selection decision still based on merit at interview |
| Development programs | Running a women's leadership accelerator to address female underrepresentation in senior roles | Section 158 (low participation) | Must be proportionate to the degree of underrepresentation |
| Mentoring | Pairing ethnic minority employees with senior sponsors to build networks for progression | Section 158 (disadvantage/needs) | Formal programs open to all, with targeted encouragement |
| Recruitment tiebreaker | Choosing a female engineer over an equally qualified male candidate when women are 8% of the engineering team | Section 159 (tiebreaker) | Candidates must be genuinely equally qualified; case-by-case decision |
| Outreach events | Hosting "women in tech" career days at universities | Section 158 (low participation) | Event encourages applications but doesn't guarantee selection |
The Disability Confident Scheme: Positive Action in Action
The UK government's Disability Confident scheme is the most widely used example of positive action in UK employment.
How it works
Employers who join the Disability Confident scheme commit to specific positive action measures for disabled applicants and employees. At Level 2 (Disability Confident Employer), this includes offering guaranteed interviews to disabled applicants who meet the minimum criteria for a role. Over 3,300 employers are registered (DWP, 2024), including most large public sector employers and many private companies.
Why it's a model for positive action
The Disability Confident scheme works because it separates access from selection. Guaranteeing an interview removes the barrier of resume-stage screening (where disability-related gaps, non-traditional career paths, or adjustments needs might cause unconscious bias). The interview itself is still merit-based. This is the essence of positive action: creating equal opportunity to compete, not guaranteed outcomes.
Lessons for other characteristics
The Disability Confident model can be adapted for other underrepresented groups. An employer with 5% ethnic minority representation in management could guarantee development conversations with all ethnic minority employees at a certain grade level. This doesn't promise promotions. It ensures access to the conversations that lead to promotions.
Implementing Positive Action: A Step-by-Step Approach
Building a defensible, effective positive action program requires data, proportionality, and clear communication.
- Start with data. Analyze workforce composition by protected characteristic at each level. Compare to relevant labor market benchmarks. You can't take positive action without evidence of underrepresentation, disadvantage, or different needs.
- Identify where the gaps are largest. Positive action should target the most significant disparities. If women are 50% of your graduates but 12% of your directors, the gap is in progression, not entry.
- Design proportionate measures. Match the intervention to the gap. A mentoring program for 10 employees is proportionate. Reserving 50% of promotions for one group is not.
- Document your reasoning. Record the data that supports each measure, the aim of the action, and why you believe it's proportionate. This documentation is your defense if the measure is challenged.
- Communicate clearly. Explain to all employees what you're doing and why. Positive action generates less backlash when people understand the data behind it and know that selection decisions remain merit-based.
- Review annually. Positive action should be time-limited and reviewed against outcomes. If the underrepresentation has been addressed, the justification for the measure may no longer exist.
- Keep selection decisions separate. Positive action measures (outreach, development, encouragement) and selection decisions (hiring, promotion) must operate independently. The positive action creates a broader, more diverse pool. Selection from that pool is on merit.
Positive Action Usage Statistics (UK) [2026]
Data on how UK employers are using (and underusing) the positive action provisions available to them.
Frequently Asked Questions
Is positive action mandatory for UK employers?
Can positive action be used for any protected characteristic?
How do we prove candidates are equally qualified for the Section 159 tiebreaker?
Can we restrict a development program to one demographic group?
Does positive action apply to redundancy decisions?
How is positive action different from affirmative action in the US?
Written by Adithyan RK